The U.S. government can now keep prisoners in custody who have not necessarily been convicted of a crime, based on suspicions of “future dangerousness.”

The U.S. Supreme Court’s 7-2 ruling this week in U.S. v. Comstock, which declared that the federal government has the right to hold convicted sex offenders in “civil commitment” even after they have completed their prison sentences, has alarmed civil libertarians, many of whom are asking: If the government can keep sex offenders in preventive custody as long as they remain “dangerous,” what will stop it from doing the same with terror suspects? The rights of terrorists — like those of sex offenders — might matter little to the average American, but the implications for a free society are unmistakeably dangerous.

The possibility that Comstock could help justify the legal black holes at Bagram or Guantanamo is certainly a concern worth raising, particularly given the Obama administration’s embrace of indefinite detention. But it seems equally important to consider the immediate implications for the prisoner population that may be affected by this law. It could be bigger than we think.

Blandly known as Section 4248, the legal provision upheld by the court this week was a product of the Adam Walsh Child Protection and Safety Act of 2006, the sweeping legislation that created the massive National Sex Offender Registry and strengthened laws prohibiting child pornography. Section 4248 holds that a convicted sex offender who is determined to be “sexually dangerous” can be detained indefinitely by the federal government, under order of the U.S. Attorney General. This was not an unprecedented idea: The Supreme Court had previously upheld the power of the states to “civilly commit” convicted sex offenders, in 1997, in Kansas v. Hendricks. In 2007, the Charlotte News and Observer estimated that some 2,700 state prisoners were being held in civil commitment.

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But the new legal statute presented by the Adam Walsh Act was much more sweeping than anything addressed by Hendricks. An amicus brief submitted by the National Association of Criminal Defense Lawyers (NACDL) on behalf of the respondents inComstock points out that, for example, whereas states must provide a psychiatric evaluation of those labeled sexually dangerous, the federal government need only suggest that a district court “may order … a psychiatric or psychological examination of the defendant.” If the court elects not to, it can “proceed directly to a hearing and make a determination regarding sexual dangerousness without any evaluation of the individual’s mental condition having been conducted.”

What’s more, states that want to civilly commit a sex offender must prove their dangerousness beyond a reasonable doubt, the same standard as a criminal conviction. Section 4248, on the other hand, requires merely that there be “clear and convincing evidence” that a person is sexually dangerous — even if he or she was never actually convicted of a sex crime in the first place.

Which gets to the most alarming part. The NACDL pointed out in its brief that, whereas the Kansas statute “applied only to persons previously ‘convicted of or charged with’ at least one of twelve specifically defined sexually violent offenses,” Section 4248 makes no such specification, basically authorizing “certification and potential commitment of a significant number of persons with no criminal history of sexual misconduct.”

As attorney and civil libertarian Wendy Kaminer wrote for the Atlantic this week, this means that “the government is empowered to imprison (or ‘civilly’ commit) people indefinitely without bothering to try them in criminal court or in any other proceeding in which they are afforded the rights of a defendant in a criminal case, even if they have never been convicted of any sex crimes.”

“Federal criminal jurisdiction has expanded dramatically in the last few decades, with the blessings of conservatives and liberals alike,” Kaminer writes. “Now, thanks to the ruling in U.S. v Comstock, that power seems practically infinite: federal authorities can imprison people indefinitely on suspicions of future dangerousness. It’s not just suspected sex offenders or terrorists who are at risk. “

Can Future Dangerousness Be Predicted?

It would be easy to assume that the original defendants in Comstock were irrepressibly monstrous predators, something along the lines of Phillip Garrido. In fact, the longest prison sentence served by any of them was eight years. Graydon Earl Comstock Jr., was serving a three-year term in federal prison for receiving child pornography. Thomas Matherly had completed a three- to four-year federal sentence after pleading guilty to one count of possessing child pornography. Markis Revland had finished a five-year prison term for possession of child pornography. Two others, Shane Catron and Marvin Vigil, were accused of sexual abuse of a minor; Catron was deemed incompetent to stand trial, and Vigil served an eight-year prison term.

In November 2006, Comstock was six days from finishing his 37-month sentence when Attorney General Alberto Gonzales, invoking the authority imbued by the newly passed Adam Walsh Act, declared him “sexually dangerous,” blocking his release. When the Fourth Circuit Court of Appeals ruled last year that such a determination was unconstitutional, the Obama administration stepped in and blocked the release of several dozen convicted sex offenders who had served their federal sentences by filing an emergency appeal with the Supreme Court. Newly appointed Solicitor General Elena Kagan, who is now in line to become our next Supreme Court justice, wrote that the prisoners’ release “would pose a significant risk to the public and constitute a significant harm to the interest of the United States.”

During oral arguments last fall, in which Kagan argued convincingly that the federal government has the right to hold sex offenders beyond their prison sentences, the justices seemed to take at face value the claim that “future dangerousness” can be accurately determined, debating a supposedly analogous scenario in which a prisoner infected with a highly contagious virus must be held in federal custody to prevent him from ravaging the population at large, zombie-style. “It seems to me that the constitutional answer is the same in this statute as in the case of somebody who incurs a very communicable disease and the government wants to prevent him from infecting the community,” Justice John Paul Stevens said.

The problem with that logic is that, while an infectious disease can be scientifically guaranteed to spread, the same degree of certainty does not exist with regard to convicted sex offenders, even those with criminal histories. Contrary to popular perception, it is very hard to predict which individuals will reoffend once they are released to the outside world. In its amicus brief, NACDL warned that Section 4248 “rests on an incorrect assumption that the individuals who will commit future sex offenses can be identified accurately.”

“Although there is no dispute that mental health professionals can be helpful in assisting judges to understand individuals’ mental states,” NACDL argued, “literature and data from the past thirty years suggest that, when it comes to predicting which individuals will commit offenses in the future, professionals’ predictions are neither accurate nor reliable for purposes of legal determinations affecting a person’s liberty interests.”

NACDL pointed to a 2006 study which found that “clinical judgments” predicting whether sexual offenders will reoffend, are “wrong between 72% and 93% of the time.”

Due process, however, flies out the window where convicted sex offenders are concerned, and an almost universal unwillingness, however understandable, to defend them means that laws targeting them have gone largely unchecked. For all the concern over what the ruling in U.S. v. Comstock might mean for terror suspects down the line, there is very little concern over what it means now for the 105 sex offenders being held indefinitely.

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